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Discriminatory and anti-constitutional requirements of Ukrainian legislation, regulating the election of the President of Ukraine
Author article
Vladymyr Marinich

Section 1. Illegal requirements of the Central Election Commission to persons who are registered as candidates for the President of Ukraine regarding the payment of a monetary deposit and submission of an income declaration.

The second and the third parts of the Article 103 of the Constitution of Ukraine (adopted in 1996) establish general demands to the candidate for the President of Ukraine, which are:

  • attainment of 35 years old by the citizen;
  • right to vote (juridically this means to be a citizen of Ukraine and to be legally capable)
  • to know the state language;
  • exclusion of the possibility of being elected as the President of Ukraine for more than two consecutive terms.

In case that the person has never held the post of the President of Ukraine (usually it is a well-known fact), the only document that is necessary to confirm the person’s compliance with all the above mentioned requirements for a candidate for the President of Ukraine is the passport of a citizen of Ukraine (the passport shall be submitted to the Central Election Commission of Ukraine for a verification).

However, as of the date of this paper, the Central Election Commission of Ukraine exacts to pay a monetary deposit in amount of 2.500.000,0 UAH (as of the beginning of 2017 this amount comes up to 90,000,00 EUR) as well as to file an income declaration of the persons, who register as the candidates for the presidency of Ukraine.

The person, who registers as a presidential candidate, shall earn at least 4.170.000,00 UAH (as of the beginning of 2017 this amount comes up to 140,000,00 EUR) for the payment of the foregoing monetary deposit. The mentioned sum of money is calculated with taking into account the fact that the rate of tax on personal income is 18 percent (in accordance with the provisions of the Article 167.1 of the Tax Code of Ukraine), and the Unified Social Tax is 22 percent (in accordance with the provisions of the Article 8 of the Law of Ukraine “On Collection and Registration of the Single Contribution for Mandatory State Social Insurance” dated July 08 2010, No 2464-VI).

The mentioned amount does not include the funds that the person should earn for one’s living.

Whereas, the Central Election Commission of Ukraine specifies that these additional requirements for such a registration are established by the Law of Ukraine “On Elections of the President of Ukraine” dated March 05 1999, No 474-XIV.

It is necessary to pay attention that the Law of Ukraine “On the Election of the President of Ukraine” was adopted for the fulfillment of the requirements of the part 6 of the Article 103 of the Constitution of Ukraine and for the settlement of the election procedure of the President of Ukraine.

In turn, in accordance with the Article 8 of the Constitution of Ukraine, the norms of the Constitution of Ukraine are norms of direct effect, and the Constitution of Ukraine has the highest legal force in Ukraine. The foregoing means that the establishment of additional requirements for a candidate for the post of the President of Ukraine is prohibited, unless this is provided for by the Constitution of Ukraine.

What is more, in accordance with the provisions of paragraph 3 of the Article 22 of the Constitution of Ukraine content and scope of the rights and freedoms shall not be diminished while the adoption of new laws or making of the amendments to the existing laws.

Thus, while the adoption of new laws (including the adoption of the Law of Ukraine "On the Election of the President of Ukraine" in 1999) the Verkhovna Rada of Ukraine has had no right to diminish the scope of existing rights of people wishing to become a candidate for the President of Ukraine by means of setting these additional requirements, including the submission of the income declaration and payment of a monetary deposit.

The establishment of the mentioned additional requirements may be considered as one, which is unconstitutional.

Whereas, the provisions of the Article 103 of the Constitution of Ukraine do not envisage the regulation of any issues other than the election process by other laws. Consequently, the settlement of the additional demands for the registration is not provided, but also the settlement of the process of the registration of the candidates is not presumed at all.

Furthermore, it should be noted that in contrast to the electoral process in European countries, where the “election deposit” is used, in Ukraine another element is used, namely the “monetary deposit”.

However, in accordance with the provisions of the Article 574 of the Civil Code of Ukraine, the monetary deposit of the candidate for the President of Ukraine, as a pledge that arises under the law is to be applied along with the provisions of this Code concerning pledge arising under the contract.

In turn, in accordance with the Article 546 of the Civil Code of Ukraine, the monetary deposit is a type of insurance of compliance of the obligations.

However, for today the legislation of Ukraine contains no definition of the obligation for a candidate for the President of Ukraine, which needs the insurance with the monetary deposit – this fact generally eliminates the possibility and necessity of the use of the monetary deposit in these elections.

In addition, it should be noted that according to the requirements of the Article 49 of the Law of Ukraine "On the Election of the President of Ukraine", the deposit shall be paid only by the party or the candidate for the President of Ukraine.

Therefore, the person, who registers as a self-nominated presidential candidate, is not considered as a candidate prior to the registration.

That is to say, even in accordance with the requirements of the Law of Ukraine “On Elections of the President of Ukraine” the foregoing person is not obliged to pay the monetary deposit while filing the application for one’s registration as the presidential candidate.

Taking into consideration all the aforecited and the provisions of the paragraph 1 of the Article 19 of the Constitution of Ukraine ("no one can be forced to do something that is not required by the legislation"), a person with a wish to register as a candidate for the President of Ukraine shall only submit the passport of Ukraine, which confirms the compliance of a candidate to the requirements established by the paragraphs two and three of the Article 103 of the Constitution of Ukraine.

Whereas, the Central Election Commission may not request for submission of any other documents except for the Ukrainian citizen’s passport (in particular, it is not entitled to ask for submission of the income declaration and documents confirming payment of monetary deposit).

The application of the requirement about the payment of the monetary deposit by the presidential candidate is illegal till the modification of the constitutions.

In any case, it should be noted that even just a fact of the existence of a demand to pay a monetary deposit for the registration as a candidate for the President of Ukraine in any amount is illegal and discriminative.

In our opinion, taking into consideration an economic situation in Ukraine, the requirements on the education and/or electorate support should be established instead of monetary deposit.

Section 2. The discriminative sum of the monetary deposit for the candidate for the post of the President of Ukraine in the amount of 2.500.000, 00 UAH (as of the beginning of 2017 this amount is about 90.000, 00 EUR) established by the requirements of the Article 49 of the Law of Ukraine “On Elections of the President of Ukraine”.

2.1. In accordance with conclusions of the Constitutional Court of Ukraine, which are set out in the Paragraph 3 of the Item 4.2 of the decision dated January 30, 2002 in case № 1–18/2002, the monetary deposit shall be applied to ensure the responsible attitude of the citizens as possible candidates to their participation in the elections, contributes to making of the balanced decisions by such a candidate to implement passive election right and prevents possible unnecessary expenses from the State budget.

In this case, the Constitutional Court did not set a reasonable amount of a monetary deposit, but in the paragraph 5 of this decision, the Constitutional Court of Ukraine, with the reference to international practice, emphasized that the sum of a monetary deposit should be settled depending on the financial capacity of the majority of the population, and the violation of this demand may significantly limit the number of candidates for seats in parliament, particularly from financially poor parties (blocs) and candidates.

In turn, taking into consideration the above mentioned facts and the provisions of the Article 24 of the Constitution of Ukraine, Article 2 of the Universal Declaration of Human Rights (adopted by the UN General Assembly on December 10, 1948), Article 2 of the International Covenant on Civil and Political Rights (adopted in New York on December 16, 1966), paragraph 9 of the Explanatory memorandum opinion of the Venice Commission (adopted at the 52nd session on 18-19 October 2002) , paragraph 17 of the joint opinion of the Venice Commission ( adopted on 80 session 9-10 October 2009), we may conclude that each person should have all the rights and freedoms regardless of property status and should not be a subject of discrimination in exercising their rights.

Thus, in the judgment of the European Court of Human Rights from 28.03.2006 in the case of "Sukhovetskyy v. Ukraine" with a similar issue in the paragraph 28 of the judgment it is mentioned that the system of deposits is discriminative against persons with low income and encroaching thus on their human dignity.

In the paragraph 39 of this judgment, the European Court of Human Rights, referring to the activities of the Venice Commission of the Council of Europe while the evaluation of changes to the Electoral Code of Armenia, stated:

An unreasonably high electoral deposit also presents a problem under international and European standards. It is an established principle that wrongful discrimination includes discrimination against a person on the basis of social or property status. Thus, the amount of an electoral deposit must be considered carefully to ensure that it does not prevent the candidacy of a serious candidate who happens to be economically disadvantaged”.

In the Item 41 of the mentioned judgment the European Court of Human Rights refers to the General Comments of the Committee on Human Rights, adopted according to the Article 40 (4) of the International Covenant on Civil and Political Rights from July 12, 1996, under which the Committee evaluated the issue of election deposits this way:

Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory”.

In addition it should be noted that in the paragraph 67 of the mentioned judgment, the European Court of Human Rights emphasized that:

The Court observes that the policy behind the impugned measure required the State to strike a delicate balance between conflicting interests: on the one hand, deterring frivolous candidates whatever their social standing, and, on the other hand, allowing the registration of serious candidates, including those who happen to be economically disadvantaged”.

That means, that the practice of the European Court of Human Rights is to ensure that the amount of money of the election deposit should be reasonable, based on the characteristics prevailing in a particular country.

Moreover, the state of Ukraine has not made the calculations of the sum of the monetary deposit in connection with financial and economic situation of the population of Ukraine, so the existence of the monetary deposit in any sum of its size is discriminative on the basis of property status in relation to the majority of the population of Ukraine.

In turn, it should be also pointed out that in the Constitution of Ukraine the issue of applying of election or monetary deposit is not agreed, so the existence of it is in contrary to the requirements of the paragraphs 2 and 3 of the Article 103 of the Constitution.

 

2.2. To investigate the validity of the monetary deposit for a candidate for the President of Ukraine in the amount of 2,500,000.0 UAH and the population of Ukraine able to pay such an amount of the monetary deposit, we consider it appropriate to study the following statistics taken from the official website of the State Statistics Committee of Ukraine.

The analysis was made for the day of the last presidential election in Ukraine (2014).

Taking into consideration that according to the Article 103 of the Constitution of Ukraine the candidate for the President of Ukraine has to attain 35 years old, the period to study was selected from 1995 to 2013 (i.e., assuming that the possible candidate for the President of Ukraine started his working activity in the age of 16).

In particular, we consider it appropriate to study the dynamics of the average wages in UAH, because wages are the main source of income of the population of Ukraine (data taken from the official website of the State Statistics Committee of Ukraine).

Years Wages per month in UAH
1995  73
1996  126
1997  143
1998  153
1999  178
 2000  230
 2001   311
 2002  376
 2003  462
2004  590
 2005  806
2006 1041
 2007  1351
 2008  1806
2009  1906
 2010  2239
2011  2633
 2012  3026
 2013 3265

 

Herewith, please evaluate the fact that the foregoing total amounts of wages are shown without taking into account expenses, in particular, for payment of taxes.

Whereas, the person, who wants to be registered as the presidential candidate, firstly shall pay taxes and then pay the monetary deposit. As a result the mentioned person shall earn at least 4.170.000,00 UAH in order to pay the monetary deposit in amount of 2.500.000,00 UAH.

From these data we may see that the average citizen of Ukraine for the period from 1995 to 2013 in the process of his entire work activity was able to save only the sum of  248,580.0 UAH (16,572.0 EUR) that is 8.75% of the set statutory amount of the monetary deposit and only 5,96% of the 4.170.000, 00 UAH.

Nonetheless, even the mentioned sums and per cent do not include the expenses for keeping and maintaining a minimum standard of living.

The given above information of state statistics may prove that an ordinary citizen of Ukraine for the entire life can not officially make money on monetary deposit for the candidate for the President of Ukraine, even if he will not eat, drink, and pay the rent - and thus he will never be able to exercise the right to be elected as the President of Ukraine.

Thus, even assuming that the possible candidate was not going to spend his required minimum to maintain the living, he would not have enough saved up money for the monetary deposit.

However, it is equally important to emphasize that according to official data of the Ministry of Revenue and Duties of Ukraine as of 2013, only 3,774 people declared their income of over 1 million UAH ( 67.000,0 EUR) a year, while the number of population of 45,553,000 people as for the 01.01.2014. That means that, only about 0.0083 % of the population of Ukraine have the chance to accumulate money for a few years and pay a monetary deposit of 2,500,000.0 UAH and therefore to become a candidate for the President of Ukraine (which equality and non-discrimination is all about?).

We hope that nobody believes that only 0.0083 % of our population are those who may "express a responsible attitude towards the electoral process as a possible candidate for the President of Ukraine"?!

Thus, a person who wishes to be registered as a candidate for the President of Ukraine cannot get money for the deposit from the non-taxed donations from the voters because such funds should be allocated only to a saving account, which is in accordance with the provisions of the paragraph 4 of the Article 41 of the Law of Ukraine "On the Election of the President of Ukraine" may be opened only after the registration of the candidate (ie, after the payment of the monetary deposit of 2,500,000.0 UAH).

Thus, the Law of Ukraine "On the Election of the President of Ukraine" settled the amount of a monetary deposit, which is disproportionate and discriminatory, and thus to be not in accordance with the principles of reasonableness and fairness.

Whereas, the European Court of Human Rights, in paragraph 24 of the abovementioned judgment in case "Sukhovetskyy v. Ukraine" stated that:

The sum to be paid is calculated in various ways, for example, by multiplying certain amounts predetermined by law (such as the minimum wage in Armenia, the average wage in Lithuania) or by applying a fixed amount (as in Bulgaria). The actual sum for individual candidates currently varies from EUR 92 (Malta) to EUR 2,600 (Bulgaria)”.

As far as it is seen from the conclusion, for Malta there is set the amount of the election deposit of 92.0 Euro - that is an equivalent in UAH according to the official rate of the National Bank of Ukraine on the day of the submission of the application for the  registration as a candidate for the President of Ukraine (100.0 Euro – 1,384.614 UAH), this is the amount of  1,356.92 in national currency. Thus, the average wage in Malta is the sum of 2,397.0 Euro, that is the sum of 33.189,2 UAH and the minimum wage is about 650.0 - 800.0 Euro, which is the amount of 8.999,99 - 11.076,91 UAH. Statistical data according to the European Union information:

Average and Median Monthly Salary Comparison in Malta

Maximum: 8,333 EUR

Average: 2,397 EUR

Median: 2,009 EUR

Median: 2,009 EUR

 

Minimum Wage in Malta - Full-Time Employees - per week (Age 18 years and over)

2013 - €648,76 (National  Minimum Wage per month) and €653, 44 (Retail & Wholesale Minimum Wage per month)

While analyzing these data it may be concluded that the amount of money that is set in Malta for the election deposit is approximately 57% of the minimum income per week. In addition, according to the official data, Malta by its human development index by UNDP is ranked 32 in the world, and Ukraine is not included to the countries with high human development index.

That means that in the country that is characterized by much higher economical characteristics, both in terms of incomes of the population and overall development, the amount of monetary deposit is approximately 1842 times less than the amount set in the Ukraine.

The minimum wage in Ukraine is 1,218.0 UAH (for 2014) - that means the minimum wage per week is 304.5 UAH. Thus, 57 % of the minimum wage per a week in Ukraine is 173.57 UAH.

Taking into consideration the above mentioned recommendations of the European Court, and that the general index of human development in Ukraine is much lower than in Malta, the size of the election deposit in Ukraine cannot be higher than 173.57 UAH, or to be non-existent at all.

However, none public body has provided other calculations of a fair amount of the monetary deposit connected with the minimum wage in Ukraine and the recommendations of the European Court of Human Rights.

As well it should be noted that the legislature defined the period to prepare for the elections by the appointment of them.

Thus, the time to find costs is possible to be considered only as the time when citizens became aware of the elections (ie, from the moment of the announcement of the elections and by the end of the registration or application, in this case not more than 6 months).

However, in Ukraine there are no people (with the exception for 7-8 people) who officially in such a short time would earn enough money to pay a monetary deposit 2,500,000, 00 UAH for the presidential elections in Ukraine.

In connection with the foregoing, the payment of the election (monetary) deposit in the amount of 173.57 UAH corresponds to the standard of living in Ukraine, financial situation and serious and responsible attitude in the process.

Section 3. Obligations of the state and the authority of state bodies of Ukraine on the elimination of the discrimination on the basis of the property status.

Deprivation of the opportunity to take part in the presidential election in Ukraine due to the citizens’ inability to pay a monetary deposit in the amount of 2,500,000.0 UAH - that is by means of discrimination based on the citizens’ property status is a violation of the citizens’ “passive” election rights “to be elected as the President of Ukraine”.

In turn, in accordance with the Article 3 of the Constitution of Ukraine the establishment and protection of the rights and freedoms of a person is the main duty of the state, and in accordance with the provisions of the Article 24 of the Constitution of Ukraine, there shall be no privileges or restrictions (i.e., discrimination) on property status in Ukraine.

The protection of the citizen’s election rights the state exercises being represented by the CEC, because the CEC in accordance with the Article 17 of the Law of Ukraine “On the Central Election Commission” and taking into account the provisions of the paragraph 2 of the Article 19 of the Constitution of Ukraine is obliged to ensure the implementation and protection of the citizens’ election rights, which according to the Article 16 of the Law of Ukraine “On the Central election Commission” is given the right to take appropriate actions.

Thus, it is the Central Election Commission until the time of making the decision regarding the application for the registration as a candidate for the President of Ukraine, to have been obliged on its own to take all appropriate measures to eliminate the discrimination on the basis of the citizens’ property status, and the citizen should not have to ask for this the Central Election Commission - and therefore the non-taking of such measures is the illegal omission of the Central Election Commission.

For the provision of the elections the state, according to the Laws of Ukraine on the state budget of Ukraine (for the appropriate year) allocates to the Central Election Commission the corresponding amount of money. In turn, according to the decision of the Central Election Commission, the Commission approves the distribution of funds from the State Budget of Ukraine allocated for the preparation and holding of the presidential elections in Ukraine.

However, there are provided the reserve funds that is, the balance, which is fully sufficient to eliminate the discrimination of citizens while registration as the candidates for the President of Ukraine.

In our opinion if the state of Ukraine, represented by the Verkhovna Rada of Ukraine in the Law of Ukraine "On the Election of the President of Ukraine" settled a requirement of payment of the monetary deposit in the amount of 2,500,000.0 UAH for the registration as a candidate for the President of Ukraine, which has the characteristics of discrimination towards citizens by property status, then the state of Ukraine, represented by the Central Election Commission, which has the appropriate credentials and reserve funds is obliged to eliminate the discrimination against citizens with public funds (as well as the Social Security Funds exercise it for the people with low income).

Otherwise, the state of Ukraine may be considered as having failed in its duty to protect the citizens’ rights.

Thus, the Central Election Commission (the CEC), in accordance with the paragraph 7 of the Article 18 of the Law of Ukraine "On the Central Election Commission" and Article 38 of the Law of Ukraine "On the Election of the President of Ukraine" shall monitor the use of funds and it is the main administrator of the funds allocated from the State budget of Ukraine for the preparation and holding of the election.

At the same time, the legislation of Ukraine does not set any restrictions and prohibitions on the applying by the Central Election Commission of funds (allocated to ensure the electoral process) in order to pay monetary compensation that will allow the relevant persons to register as candidates for the post of the President of Ukraine and pay the above mentioned monetary deposit.

Therefore, in accordance with the above said and provisions of the Articles 16 and 17 of the Law of Ukraine "On the Central Election Commission" the Central Election Commission shall ensure the implementation and protection of the electoral rights of every citizen of Ukraine and the principles and foundations of the electoral process and has the relevant authority to make decisions on this matter.

In connection with the abovementioned, for the protection of the citizens’ election rights, the Central Election Commission is obliged to eliminate the discrimination on the basis of the citizens’ property status by means of compensation for citizens the amount, which they did not have enough to pay a monetary deposit.

The CEC cannot change the law, but the Central Election Commission may and must ensure the citizens’ election rights, while it has appropriate powers and resources for.

In our opinion, the Central Election Commission is obliged to take all appropriate measures to eliminate the discrimination on the basis of the citizens’ property status on its own before the decision regarding the citizens’ applications for the registration as the candidates for the President of Ukraine, and citizens are not obliged to ask for it or demand.

Section 4. Violation and wrong application by the national courts of Ukraine of the norms of the substantive and procedural law of Ukraine, legal practice of the European Court of Human Rights and generally accepted international norms of law on human rights during the consideration of the case on the impugnment of the actions of the Central Election Commission and the recognition of the facts connected with the election of the President of Ukraine.

The national courts in Ukraine disqualify themself from consideration of the issues on the existence of the discrimination of the Ukrainian citizens by property status and its elimination, and none national judicial authority paid attention to the mentioned above reasoning and the practice of the European Court of Human Rights.

The courts of Ukraine do not want to establish facts of compliance with the requirements of the Constitution for persons wishing to register as the candidates for the election of the President of Ukraine and consider the non-payment of the monetary deposit in the amount of 2,500,000.00 UAH as a reason for refusing in such a registration.

Thus, the national courts of Ukraine settled citizens of Ukraine, who wish to register as candidates for the election of the President of Ukraine, in dependence on paying by them of a monetary deposit.

In accordance with the provisions of еру Articles 67 and 68 of the Constitution of Ukraine citizens should perform duties to the State of Ukraine to pay taxes and keep the norms of the Constitution of Ukraine and laws of Ukraine, but in the context of the election of the President of Ukraine, they cannot exercise their passive election rights.

 

Conclusion: nowadays, the Ukrainian legislation establishes discriminatory conditions for the electoral process for the overwhelming majority of Ukrainian citizens (who officially receive income, pay taxes and comply with the requirements of Ukrainian legislation), and state bodies of Ukraine have avoided protecting the rights of these citizens of Ukraine, which does not allow Ukraine to be considered a civilized and legal state.

 

Managing Partner of the Law Firm "FOX" Vladimir Marinich